Ethical and Regulatory Aspects of Online Document Assembly Services Richard Granat Will Hornsby Marc Lauritsen Monthly Developer Call for the LawHelp Interactive Community Organized by Pro Bono Net September 29, 2010

Panelists Richard Granat – DirectLaw and MyLawyer.com William Hornsby – staff counsel, American Bar Association Division for Legal Services Marc Lauritsen – Capstone Practice Systems (moderator)

What and why Online services that gather information, give information, and generate documents Used by self-helpers, clients, advocates, and court personnel Benefits Dissemination of knowledge and assistance Efficient production of routine work Better document results, more informed litigants

Traditional service Co-production Self help

Today’s focus Ethical and regulatory considerations bearing on delivery of online document assembly services outside of lawyer-client relationships Also touching on Use of such services within lawyer-client relationships, such as unbundled and assisted pro se scenarios Risk/benefit management more generally

Potential problems (from the provider’s perspective) Service is claimed to be unauthorized practice Lawyer participants are claimed to be unethically assisting unauthorized practice An unintended lawyer/client relationship arises, with duties that aren’t or can’t be met An aggrieved user sues (malpractice, general negligence, consumer protection, …)

Preliminary points Key question: what is the practice of law? This is an evolving area, with lots of murky aspects. Few bright lines. Great variation by jurisdiction Competing values and policy perspectives (e.g. consumer protection cuts several ways)

Legal information vs. advice Usually improper to give advice outside an attorney/client relationship Where does interactive software fit? Can a machine give ‘advice’? Information General advice Assistance Specific advice Representation

Issues if the service provider is practicing law Confidentiality Conflicts of Interest Duty to inquire Candor toward the tribunal Clarity on scope of representation Duties to prospective clients Communication with opposing counsel and unrepresented parties

Unauthorized practice Dacey, Parsons, Reynoso Texas UPL statute exception Form selection and document preparation Does it make any difference if you are a nonprofit? If the service is free? 1st amendment – speech vs. action FTC, Dept of Justice

Example: “What is considered the "practice of law" Example: “What is considered the "practice of law"? The practice of law is more than just appearing in court on behalf of a client. Though no concise definition of practice of law exists, certain characteristics make it more likely that the Court will view certain conduct as the practice of law. An early South Carolina case, cited by other jurisdictions as well, stated that the practice of law includes "the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law." In re Duncan, 65 S.E. 210 (S.C. 1909). The practice of law "extends to activities in other fields which entail specialized legal knowledge." South Carolina v. Buyers Serv. Co., 357 S.E.2d 15 (S.C. 1987). Additionally, whether an individual is paid for his or her services is irrelevant. The reasons for prohibiting the unauthorized practice of law are not to protect licensed attorneys from losing business to unlicensed individuals. Rather, the purpose is to protect the public from consequences resulting "from the erroneous preparation of legal documents or the inaccurate legal advice given by persons untrained in the law." South Carolina v. McLauren, 563 S.E.2d 346 (S.C. 2002).” http://www.scbar.org/public_services/unauthorized_practice_of_law/

Texas exception ‘In this chapter, the "practice of law" does not include the design, creation, publication, distribution, display, or sale, including publication, distribution, display, or sale by means of an Internet web site, of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney.’

Document preparation services Online forms Document preparation services

Online automated forms

Online services with lawyers in the loop

Should software be treated like books? But … Can be contextualized to specific circumstances Can feel like you interacting with a person (avatars, audio, video) Might be described as an ‘expert system’ Software is essentially just a text being followed by a machine Incapable of “judgment” Gives same results to all comers Mutual anonymity

Law is not being practiced here Author, advisers, publisher, book store personnel, … Law is not being practiced here

Is law being practiced here? Sponsoring programs, substantive experts, technical developers, funders, service providers Is law being practiced here?

Bidirectional communication

Facts Opinions Advice Conversation Expertise Publication Law practice (counsel, representation) Facts Opinions Unauthorized practice Advice Conversation Interpersonal “Live” Legit doc prep services Expertise <= One-way Human communication Two-way => Self help systems ? Impersonal “Pre-recorded” Publication Books, pamphlets Books, pamphlets <= Information Content Guidance =>

Important safeguards Ensure quality control – testing, updating Follow ABA best practices Include qualifying questions and disclaimers Provide well-crafted terms of service and privacy policies Collaborate with the courts Talk with bar regulators, UPL authorities Talk with malpractice insurer

How to make clear to people that they are not in a lawyer-client relationship It comes down to “reasonable belief” Disclaimers Up front In interviews In documents/instructions Get an affirmative acknowledgment

Risks we should be most concerned about People being hurt by misunderstandings about the service; inaccurate or incomplete information. People not being helped out of exaggerated fears of impropriety or liability; by giving in to unreasonable restraints on service delivery.

If your regulatory environment seems an unreasonable obstacle Encourage re-interpretation Seek changes in the rules Challenge on constitutional or federal preemption grounds Consider limited services models

Resources ED105 - Technology Ethics and Pitfalls in Online Legal Services (2005) - http://lsntap.org/ed105 http://www.abanet.org/cpr/model-def/model_def_statutes.pdf ABA standards for provision of civil legal aid – http://www.abanet.org/legalservices/sclaid/ ABA best practices for legal information websites - http://www.elawyering.org/tools/practices.shtml http://www.selfhelpsupport.org/library/folder.100606-Court_Rules_Standards Scriveners In Cyberspace: Online Document Preparation and the Unauthorized Practice Of Law, Catherine J. Lanctot (2002)

Recap Online document assembly services can be delivered in legal and ethical ways The risks are manageable Make it your business to know local laws and rules Talk with relevant authorities Try to improve the regulatory environment if it seems unreasonable

Questions and Comments